1. his failure to engage constructively in the safety investigation and to accept that pilot error was the cause of the incident, leading the Respondent to conclude that he could not be relied upon to implement required changes.

• [75] The Respondent emphasised that it has stringent statutory obligations under the Civil Aviation Act and workplace health and safety legislation to maintain a safe workplace and that it could not, consistently with those obligations, allow a pilot to continue to perform high-risk aerial firefighting operations if the Group Chief Pilot reasonably considered the pilot to be unsafe.

• [76] In oral submissions, the Respondent outlined four aspects of airmanship on the flight of 10 March where the Applicant fell well short of required standards, although it must be observed that the second to fourth "acts of airmanship" all involved failures to release the long line, albeit at different points in time.  They were:

1. The approach to hover, leading to the vortex ring state;

2. The failure to release the long line when flying forward;

3. The failure to release the long line and bucket before hovering to empty the bucket; and

4. The failure to release the long line and bucket before landing.

• [77] The Respondent submitted that, given the magnitude of the risk and the Applicant's failure to explain his departure from accepted practice, the Respondent was entitled to conclude there was a fundamental issue with his judgment in critical situations.

• [78] As to Just Culture, the Respondent submitted that the Applicant was not dismissed for being involved in an incident or for reporting it, but for his subsequent conduct in failing to engage with the investigation and to accept the lessons to be drawn. The Respondent submitted that a pilot who refuses to participate meaningfully in a safety process or to accept that their actions contributed to a serious event cannot be safely retained.

• [79] Regarding procedural fairness, the Respondent pointed to the multiple interactions between the Applicant, the safety manager, the Head of Flying Operations and others, and submitted that the Applicant was well aware that the Respondent considered the incident extremely serious and that his performance was under scrutiny. The Respondent conceded that the termination letter did not articulate all of the reasons but submitted that, in context, the Applicant knew the matters of concern.

• [80] The Respondent submitted that the relationship of trust and confidence between it and the Applicant has broken down irretrievably, particularly given Mr Ceccanti's evidence that he could not be satisfied that the Applicant would operate safely, and that reinstatement is inappropriate.

(a) The Respondent's case on the reason for dismissal is completely different from the one

(b) Despite framing its case as essentially dismissal on the basis of a failure to be candid within a safety investigation, the Respondent did not adduce evidence from any person involved in the investigation, and did not call evidence from any of its Australian-based staff;

(c) There is no evidence that Mr Ceccanti ever spoke with the Applicant, let alone

give him an opportunity to address the matters that formed Mr Ceccanti's "view".

(d) Mr Ceccanti's "view" is at odds with the Respondent's own evidence in the Report; and

(e) There is and was no basis to terminate the Applicant's employment. Nothing in the Respondent's evidence can reasonably be regarded as impacting the Applicant's ability to return to his job.

• [82] While the termination letter referred to the reason for dismissal being "significant damage to an RFS-owned aircraft caused by your actions" and associated reputational risk to the Respondent and its customer, the Respondent specifically eschewed that reason for dismissal relating to the conduct of the relevant flight, although the Respondent also advanced a case alleging four acts of airmanship which are also considered below. It was submitted:

.... This is not a dismissal where we say the reason for the dismissal was anything done by way of the flight.  This is a dismissal where the employer says:[22]

"We dismissed because the flight happened and there was then not appropriate engagement with the safety investigation."

(a) Appropriate Engagement with the Safety Investigation

• [83] It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.[23] In order to be "valid", the reason for the dismissal should be "sound, defensible and well founded" and should not be "capricious, fanciful, spiteful or prejudiced."[24]

• [84] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant's capacity or conduct (including its effect on the safety and welfare of other employees).[25]

• [85] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[26]

• [86] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[27] In this matter, the Respondent has comprehensively failed to prove that there was not appropriate engagement with the safety investigation, or that anything done when the flight happened exceeded that outlined in the Report.

• [87] A significant factor in the conclusion that the Respondent failed to discharge their evidentiary onus are the inferences I draw arising from the Respondent's failure to call certain persons to give evidence, leading to the inferences that the evidence of such persons would not have assisted the Respondent's case.

• [88] In Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited,[28] the Full Bench of the Fair Work Commission found:

The rule in Jones v Dunkel has been aptly described as 'a rule of common sense and fairness in relation to the fact finding process.' The rule was considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo). In that matter the Full Bench made the following general observation about the rule in Jones v Dunkel:

'1. The unexplained failure by a party to give evidence, to call witnesses, or to tender

documents or some other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party's case. The rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability.

The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness. Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate party closely involved in the circumstances in question and present during the hearing of the case.

The rule provides that an inference may be drawn in certain circumstances not that such an inference must be drawn.

2. The rule permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the Commission to more readily draw any inference fairly drawn from the other evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference.

3. The rule only applies where a party is `required to explain or contradict' something and this depends on the issues thrown up by the evidence in a particular case.

4. The rule only applies to the failure to call a witness who is not a party to the proceedings if it would be natural for the party to call that witness, or the party might reasonably be expected to call the witness in question, or as Glass JA said in Payne v. Parker, `the missing witness would be expected to be called by one party rather than another'. His Honour said that this condition:

'. . . is also described as existing where it will be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reasons there will be for thinking that his knowledge is available to that party rather then to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman; his safety officer; his accountant; his treating doctor.'

A party is not necessarily expected to call their own employees, though the more senior employee the more reason for concluding that the employee's knowledge is available to his or her employer rather than any other party.

5. The evidence of the missing witness must be such as would have elucidated the matter. In Payne v. Parker Glass JA said:

'. . . according to Wigmore the . . . condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts, might have proved the contrary, would have had a close knowledge of the facts, or where it appears that he had knowledge. I would think it insufficient to meet the requirements of the principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.'

[103] Section 591 of the Act provides that the Commission is not bound by the rules of

evidence and procedure and, pursuant to s.590, the Commission 'may inform itself in relation to any matter before it in such manner as it considers appropriate'. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that 'is fair and just'. As the 'rule' in Jones v Dunkel is fundamentally concerned with issues of fairness the Commission will give consideration to its application in an appropriate case. We adopt the observations made in Tamayo.

[104] A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case: not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case. A breach of the rule in Jones v. Dunkel may also result in a ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.

• [89] There were four potential witnesses who would have been able to give evidence for the Respondent. At the time of the Hearing there was no suggestion that any of the four potential witnesses were no longer employed by the Respondent, and it is clear that each witness held a senior role with the Respondent and were involved with the investigation of the Incident. It would have been natural, and it would be reasonably expected, for the Respondent to call those witnesses.

• [90] Those four potential witnesses were the authors of the Report, Mr Hahn-Hill and Mr Harris, Mr Cavarra, the Chief Operating Officer of Coulson Aviation Australia, and Mr Nathan Soster, Director of Flight Operations Coulson Aviation Australia. Each would have been well placed to give evidence as to whether there had been appropriate engagement with the safety investigation.

• [91] In the circumstances I readily draw the inference that the evidence of those four uncalled witnesses would not have assisted the Respondent.

• [92] Against those inferences, the only evidence of the Respondent regarding valid reason is pure hearsay evidence of Mr Ceccanti as to what Mr Soster may have told him at various stages in the investigation. That evidence could be afforded little weight, particularly in the absence of Mr Soster, and goes no way to establishing valid reason.

• [93] Mr Ceccanti also accepted that he did not have first-hand knowledge of the Applicant's detailed engagement with Mr Hahn-Hill, Mr Soster, Mr Cavarra or the ATSB, and had not seen the Chronology.[29] He nonetheless formed the opinion that the Applicant had not engaged "positively" in the safety process.

• [94] The evidence of the Applicant, however, establishes clear and continued engagement with the investigation process. He promptly provided his written statement on 13 March 2025 and thereafter met or spoke repeatedly with Mr Hahn-Hill, Mr Harris, Mr Cavarra and Mr Soster.

• [95] As noted above, in oral submissions, the Respondent outlined four aspects of airmanship on the flight of the Incident where it alleged the Applicant fell well short of required standards. While such a submission would seem impermissible as it flies directly in the face of Just Culture and Mr Ceccanti's evidence that Coulston understand that pilots will make mistakes, and they do not punish pilots for making errors, it must necessarily be dealt with.

• [96] The Respondent sought to advance this limb of its case by directing questions to the Applicant involving absolute propositions of alleged safety breaches that were not reflective of the contents of the Report. Unremarkably, and reflective of his candid demeanour in giving evidence, the Applicant nonetheless attempted to honestly answer those questions.

• [97] The gravity and absolute nature of the allegations advanced by the questioning was not reflective of the evidence in the matter. The Report acknowledged the possible existence of various contributing factors, and that the Applicant's response to the loss of lift was consistent with a typical recovery procedure.

• [98] The Applicant's concessions were recorded in the Report, such as the Applicant attributing the first failure to jettison the longline to human performance factors rather than a mechanical failure. He clearly outlined that he attempted to reach for the emergency release switch located on the left-hand cyclic but was unable to do so due to being focused on managing the aircraft and visually tracking the load through the bubble window.

• [99] In the Findings of the Report, a balanced assessment of the possible causes of the loss of lift found:

Loss of lift: The investigation identified that one possible cause is that the aircraft likely entered a non-stabilised flight profile during the approach to the dip site, increasing the risk of a settling with power event. Contributing factors may have included an unsettled hover state, high pilot cognitive workload, reduced visibility of critical instruments from the Transwest vertical door, and limited external visual cues due to FLIR use. Environmental conditions, including potential 30-knot wind gusts, may have further destabilized the aircraft. These combined factors likely led to a sudden loss of lift. The pilot responded appropriately by initiating forward flight, allowing recovery from the sink and preventing loss of control.

• [100] Insofar as the various acts of airmanship are relied upon, they involve a lack of consideration of the combined factors of the Incident and the principles of Just Culture, and do not constitute valid reasons. The Respondent conceded that if the Applicant accepted all issues of airmanship he would still be flying.[30] That concession directs the analysis back to the alleged inappropriate engagement with the safety investigation, which I have found did not exist.

• [101] The absence of a valid reason weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Section 387(b) - Notification of the reason for the dismissal

• [102] The Applicant was notified of a reason for the dismissal in the Termination Letter, however, as noted above that reason changed to inappropriate engagement with the safety investigation.

Section 387(c) - Opportunity to respond to any reason

• [103] The Applicant was not given an opportunity to respond to either of the reasons for dismissal. Up until the day before he received the Termination Letter, he received positive indications as to his return to work and the nature of the Investigation, including:

(a) On 13 March 2025, when Mr Soster said he would be happy to send the Applicant back to flying duties on the next shift if the Applicant was comfortable in doing so, but confirmed that the Applicant would be grounded until the company investigation had been completed;

(b) On 18 March 2025, when Mr Hahn-Hill assured the Applicant that the investigation was in no way punitive;

(c) Mr Soster also stating to the Applicant that the investigation was in no way punitive, nor that he had been negligent or that there was there any criticism of what the Applicant had done; and

(d) On 8 May 2025, when the Applicant received a call from Mr Soster in which he informed the Applicant "it's all being finalised. You'll be returning to duties next rostered shift most likely."

• [104] It was only on 9 May 2025, that Mr Soster called the Applicant and said: 'I'm sorry, a decision has been taken to terminate you. It's out of my hands." When in a separate telephone call with Mr Cavarra later that day the Applicant was asked for an explanation Mr Cavarra advised "I'll try to get you something, can I have your personal email." It was not until 14 May 2025 that the Applicant received the Termination Letter that included the now abandoned first reason for dismissal.

• [105] Mr Ceccanti accepted that he had never spoken directly to the Applicant at any stage before the decision to dismiss and that neither he nor Mr Coulson had expressed to the Applicant any concern that he was not engaging appropriately in the investigation or that his employment was at risk if he did not accept a particular view of the cause.[31]

• [106] The Applicant was not notified of any reason for dismissal and had no opportunity to respond to any of the reasons variously relied upon. This factor weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Section 387(d) - Unreasonable refusal by the employer of a support person

• [107] The Applicant does not contend that he was refused a support person.

• [108] The dismissal was not for unsatisfactory performance, and this is not a relevant consideration.

Sections 387(f) and 387(g) - The size of the employer's enterprise/human resources

• [109] The Respondent's Response indicates that the Respondent has 110 employees. It is part of a larger corporate group with its international headquarters in Canada. The Respondent has sufficient resources to follow a fair process when dismissing its employees. I consider the size of the Respondent would not have affected the procedures followed in effecting the dismissal. This is a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.

• [110] I accept that the field in which the Applicant works is limited, and the Applicant is unlikely to find a similar alternative position within a reasonable period of time.

• [111] I have made findings in relation to all matters specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

• [112] I have found the Respondent did not have a valid reason for the dismissal of the Applicant, and that no procedural fairness was afforded to the Applicant. I also accept there are limited alternative employment opportunities available to the Applicant.

• [113] I therefore find that the dismissal of the Applicant was harsh, unjust and unreasonable.

• [114] The Applicant seeks reinstatement to his former position without loss of continuity of

service, and with back-pay. Reinstatement is strongly opposed by the Respondent.

• [115] Determining a remedy for unfair dismissal is governed by the provisions of Ch 3, Part 3-2, Div 4 of the Act, which provides as follows in relation to reinstatement:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the

(a) the FWC is satisfied that the person was protected from unfair dismissal

(see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate;

(b) the FWC considers an order for payment of compensation is appropriate

• [116] It will be immediately apparent that determining a remedy for an unfairly dismissed employee essentially involves a preliminary finding by the Commission as to whether it is satisfied that reinstatement is inappropriate. It is only upon a finding that reinstatement is inappropriate that the Commission can move on to consider compensation as the alternative to reinstatement.[32]

• [117] In Nguyen v Vietnamese Community in Australia,[33] the Full Bench of the Commission noted that the question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. After a detailed analysis of unfair dismissal legislation and authorities regarding loss of trust and confidence, the Full Bench held:

[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment

concerned. There may be a limited number of circumstances in which any ripple on

the surface of the employment relationship will destroy its viability but in most

cases the employment relationship is capable of withstanding some friction and

• An allegation that there has been a loss of trust and confidence must be soundly and

rationally based and it is important to carefully scrutinise a claim that reinstatement

is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.

• [118] It will be immediately apparent that determining a remedy for an unfairly dismissed

employee essentially involves a preliminary finding by the Commission as to whether it is

satisfied that reinstatement is inappropriate. It is only upon a finding that reinstatement is

inappropriate that the Commission can move on to consider compensation as the alternative to

• [119] The Respondent's Submissions in relation to reinstatement were as follows:

The Respondent does not consider reinstatement to be an appropriate option in circumstances where the Respondent does not have trust or confidence that the Applicant can operate safely as the pilot in command of a twin turbine aircraft in complex firefighting operations.

Further, the Respondent could not confidently fulfil its statutory duties of reasonable care and diligence in circumstances where it has formed the view that the Respondent cannot pilot aircraft in firefighting operations with the requisite level of safety.

• [120] While the Respondent has submitted that it has lost trust and confidence in the Applicant, I do not consider that the Respondent has established a sound and rational evidentiary basis for such asserted loss. In his statement Mr Ceccanti's evidence was:

If Mr Khouri had participated more positively in the investigation into the incident and

had identified what he thought occurred, why it occurred and provided an assurance

that he would approach things differently in the future, there is no doubt that he would

• [121] As will be clearly apparent from my conclusions regarding valid reasons, I have concluded there was no conduct involving participation in the investigation that constituted a valid reason for termination. Accordingly, there is no basis upon which to assert any loss of trust and confidence.

• [122] The Recommendations in the Report (dated 13 May 2025, one day before the dismissal of the Applicant, and a later version dated 19 June 2025), also anticipate a return of the Applicant to work and include the following:

R3. Pilot Remedial Training & Proficiency Check

Pilot to conduct bucketing remedial training and pass a proficiency check prior to resuming operations.

• [123] In balancing all the relevant factors in this case, I find that reinstatement of the Applicant

is not inappropriate. I order that the Applicant be reinstated.

• [124] I will also make an order that the Respondent pay to the Applicant lost remuneration for

the period from his dismissal to the date of his reinstatement. Reinstatement of the Applicant shall be effected within 21 days of the date of this Decision or such earlier time as may be agreed by the parties.

• [125] Further, I propose to make orders pursuant to s. 391(2) of the Act to maintain the

continuity of the Applicant's employment, as if his dismissal had not occurred.

• [126] Orders giving effect to my conclusions will be issued contemporaneously with this

Mr M Foran of Counsel, on behalf of the Applicant.

Mr T Brennan SC of Counsel, on behalf of the Respondent.

[17] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373..

[18] Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147.

[19] [1938] HCA 34 (30 June 1938)[1938] HCA 34; , (1938) 60 CLR 336.

[21] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[23] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373, 377-8]

[24] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at [373]

[25] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at [685]

[26] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

[28] [2018] FWCFB 3989 at [102].

[32] See: Holcim (Australia) Pty Ltd v Serafini [2011] FWAFB 7794.

[33] [2014] FWCFB 7198, at [9] - [28].

[34] See: Holcim (Australia) Pty Ltd v Serafini [2011] FWAFB 7794.

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